Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles pursuant to section 47(1) of that Act – to suspend a licence
Between:
Eric Buffey
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
PANEL: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Eric Buffey, Appellant Deborah Matheson, Representative {paralegal)
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: August 4, 2020
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the "Registrar"), to suspend the appellant's class G drivers licence because the appellant suffers from alcohol withdrawal seizure and alcohol use disorder. The appellant was notified of the suspension by a letter from the Registrar dated March 23, 2020.
B. ISSUE
2The legal issue to be determined is whether the appellant suffers from medical conditions, specifically, alcohol withdrawal seizure and alcohol use disorder, which are likely to significantly interfere with his ability to drive safely.
C. CONCLUSION
3For the reasons that follow, I find that the appellant does suffer from both these medical conditions, and I find that the medical conditions are likely to significantly interfere with his ability to safely drive a motor vehicle. The Tribunal confirms the decision by the Registrar to suspend the appellant's class G driver's licence.
D. LAW
4The Registrar has the authority under s.47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA"), to suspend or cancel a driver's licence for any sufficient reason.
5Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver's licence not suffer from "any…physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely."
6Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards are not binding on Registrar or on this Tribunal.
7The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver's licence has been made out.
8Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
E. THE EVIDENCE and SUBMISSIONS
Registrar's submissions
9The Registrar reviewed the sections of the HTA that the Ministry relied upon to suspend the appellant's class G licence.
10The Registrar received an unsolicited medical report dated March 21, 2020 from Dr. Erik Hamel, an emergency room doctor. This report stated the appellant had had an alcohol withdrawal seizure. Dr. Hamel's report also stated the appellant appears to have an uncontrolled substance use disorder and is non-compliant with treatment recommendations. His report noted alcohol is the substance being abused.
11The Registrar sent a letter to the appellant on March 23, 2020, informing the appellant his licence was being suspended. The letter noted the reason for suspension at this time was alcohol withdrawal seizure. The letter outlined the conditions needed to regain his licence, namely, if the appellant's physician confirmed a diagnosis of alcohol withdrawal seizure and severe substance use disorder, then the Registrar would require "Confirmation you have remained seizure free and abstinent from alcohol for a period of one year. This period may be reduced to six months if your physician confirms that you have successfully completed a recent alcohol treatment program and is supportive of your driving privilege."
12The Registrar included a substance use questionnaire with this March 23, 2020 letter.
13The Registrar submitted a copy of the completed substance abuse questionnaire that the appellant had provided. This questionnaire was completed by Dr. Gilmour, the appellant's family doctor, on April 23, 2020. The Registrar drew our attention to the fact that the family doctor confirmed a severe alcohol use disorder and an alcohol withdrawal seizure. The doctor noted the appellant had received inpatient alcohol dependence treatment over a year before and also noted that the appellant had been compliant with treatment but only at times.
14The Registrar submitted a copy of the AUDIT Test (Alcohol Use Disorder Identification Test). This test was done by the family doctor and submitted with the substance abuse questionnaire. The appellant's score was 15. In this test a score greater than 12 is suggestive of alcohol related harm and the patient should be advised to abstain from alcohol and be further tested for alcohol dependence.
15The Registrar reviewed the appellant's substance abuse questionnaire and AUDIT Test and, on June 16, 2020, sent the appellant a letter indicating the suspension would remain in place. The letter clarified that the treatment program that might possibly reduce the length of the suspension would have to be completed during this current period of abstinence. This letter also notified the appellant that the Registrar would also require biochemical markers in the form of blood tests to confirm the appellant's abstinence.
16The Registrar submitted a copy of a letter dated June 12 from Dr. Gilmour the appellant's family doctor. This letter verified the fact the appellant was under the care of the family doctor and had been abstinent from alcohol since March 19, 2020. The letter also noted the appellant was gainfully employed and was receiving weekly therapy as an outpatient from Pinewood Mental Health Centre.
17The Registrar responded to Dr. Gilmour's report on July 23, 2020. In its letter the Registrar indicated the appellant's licence remained under suspension and the conditions to remove the suspension remained in place.
18The Registrar submitted a copy of a report from Pinewood Mental Health Centre dated July 27, 2020. This report from Ms. Tanya Allin, a registered psychologist, indicated the appellant had been treated at the Centre as an outpatient since April 19, 2020. The letter verified compliance with the program and outlined the ongoing steps that the appellant had agreed to follow, including registering for the Pathways program. This report also included copies of blood work dated July 24, 2020. This report showed the biochemical markers required by the Registrar were normal.
19The Registrar responded to the reports from Pinewood and the normal bloodwork with a letter dated July 29, 2020 indicating the suspension would remain in place and the conditions for lifting the suspension were the same as in previous letters.
20The Registrar submitted a copy of the appellant's driving record. The only entry on this record was the current suspension for medical reasons.
21The Registrar pointed out that the CCMTA was a group of road safety experts from across Canada and the USA. The CCMTA made recommendations regarding the effect of medical conditions on the ability to drive a motor vehicle safely. The agent noted that the recommendations of the CCMTA were recommendations and not the law.
22The Registrar pointed out the danger substance abuse could present while driving as well as the dangers of an alcohol withdrawal seizure. The CCMTA document outlines the dangers of substance abuse. The Registrar drew my attention to section 15.6.3, a general recommendation pertaining to substance abuse. This section recommended a period of abstinence of one year for all drivers. This period could be reduced to 6 months in drivers completing an approved treatment program.
Appellant's evidence
23Ms. Matheson thanked Mr. Kapur for reviewing all the evidence that had been submitted and explained her plan to highlight certain relevant parts of the submissions. It was her plan to direct questions to Mr. Buffey in order to present his position.
24The appellant testified he stopped drinking March 16, 2020. He had an alcohol withdrawal seizure three days later on March 19, 2020. He realized he had been drinking too much, due to the anxiety and depression he was facing and stopped "cold turkey". He felt he had no other options as AA and detox were all closed due to COVID-19. He testified that if these options were available, he would have used them and not tried to stop "cold turkey" as he would have gotten support and his drinking would not have escalated and he would have managed to avoid the alcohol withdrawal seizure.
25The appellant testified that in 2016 he spent 21 days in the Bellville Rehab Centre. He attended the inpatient program for alcohol abuse at the request of his girlfriend. He testified he was totally abstinent for 6 months after he completed his inpatient program. He then began to drink socially and then as he faced anxiety and depression his alcohol intake increased. He recognized the issue and elected to stop drinking and 3 days after stopping he had an alcohol withdrawal seizure.
26The appellant testified he had been totally abstinent from alcohol since March 19, 2020. The appellant testified he was taking several steps to remain abstinent.
a) He was reading and reviewing his journals from his admission to Bellville Rehab unit in 2016.
b) He was walking and exercising, hunting and fishing with his father.
c) He was avoiding friends he used to socially drink with. He testified he would walk the dog on a different route to avoid the homes of friends who might invite him in for a social drink.
d) He had expanded his job with a paving company and was now working in the shop as well as at the job sites. Since abstaining from alcohol, he was enjoying his work more.
e) He was enrolled and actively getting counselling as an outpatient at Pinewood Mental Health Centre.
f) He was waiting for AA to open up in smaller groups as he found it stressful to be in the larger group.
g) He lives with his parents and his parents do not take alcohol. They are supportive and drive him to work and to meetings etc.
h) He has considered and would be agreeable to having conditions put on his licence. He mentioned an interlock device or weekly drug and urine testing.
27The appellant testified he has a perfect driving record and doesn't drink and drive. He knows now that what he did was wrong, and he wishes he had done things differently but now he is doing the right things.
28The appellant read that the Registrar wanted appropriate blood testing and the appellant had these tests done and copies were sent to the Registrar. These tests were normal, and the Registrar agreed.
29Ms. Matheson in summation argued that she understood the Registrar's position, however she felt the risk of returning the licence was manageable. The appellant's seizure was an alcohol withdrawal seizure and now that he is not drinking it should not be an issue. She noted that counselling was the recommended form of treatment and the appellant was getting the counselling that was required. She did note COVID-19 had made it difficult to obtain counselling and in spite of those difficulties the appellant had managed to obtain the needed counselling. Lastly Ms. Matheson suggested that the appellant was willing to have conditions put on his licence and suggested blood and urine testing or a key interlock device could be conditions that LAT might put on the appellant if the licence was reinstated.
F. ANALYSIS
30Based on the medical evidence presented, on a balance of probabilities, I find that the appellant does have a medical condition of alcohol use disorder. As well, I find on reviewing the evidence that on a balance of probabilities this condition is likely to significantly interfere with his ability to safely drive a motor vehicle.
31I accept the evidence of the emergency doctor and the appellant's family doctor setting out the fact the appellant has a diagnosis of alcohol withdrawal seizure.
32I accept the evidence submitted by the appellant including the blood work, doctor's reports, perfect driving record, and counsellor's reports. These reports along with the testimony of the appellant confirm that the appellant is taking steps to manage his alcohol use disorder as well as his alcohol withdrawal seizure.
33The Registrar acknowledges the steps the appellant has taken. However, the Registrar would like the appellant to fulfill all the recommendations of the CCMTA (Section 15.6.3). The Registrar noted the return to a substance use disorder after 6 months of abstinence in 2016 as well as noting the appellant is still working with the counsellor and has not completed the program. The Registrar noted that Dr. Gilmour, the family doctor, noted that the appellant was compliant with treatment at times only. The Registrar feels not enough time has passed to reinstate the licence and even the reduction to the 6-month period cannot be considered until the course of therapy is completed.
34Ms. Matheson suggests the risks are manageable. She also suggests that conditions could be placed on the licence reinstatement. However, in this case the Registrar suspended the appellant's licence under s. 47 of the HTA. Under that provision, the Registrar only has the authority to suspend or cancel a licence. It has no authority to impose conditions under s. 47.
35Following an appeal under s. 50 of the HTA, the Tribunal may confirm, modify or set aside the Registrar's decision. In my view, the Tribunal only has the authority to order something that the Registrar would have had the authority to order. Thus, while conditions might be a good idea, they are not available in the context of a driver's licence suspension under s. 47.
36Based on the evidence, I am satisfied that the Registrar has discharged its burden of establishing that the appellant has conditions that are likely to significantly interfere with his ability to drive safely.
37I agree that the appellant is on the right track with abstinence and treatment, and indeed his driving record supports his position that he is generally a safe driver I encourage him to continue with his efforts.
38And while I disagree with the Registrar's position that any person who suffers from alcohol use disorder must be abstinent for 1 year to be re-licenced, in this case the appellant suffered a confirmed seizure. Having a seizure while driving would have obvious public safety implications. I believe more time is required to ensure that the appellant's seizures and alcohol use disorder will not recur.
G. ORDER:
39Pursuant to subsection 50(2) of the HTA, I confirm the Registrar's decision to suspend the appellant's class G driver's licence.
LICENCE APPEAL TRIBUNAL
Dr. Peter Savage
Member
Released: August 21, 2020